supreme court Nominee’s views on powers could be flashpoint
Brett Kavanaugh’s writings likely topic at confirmation hearing
Supreme Court nominee Brett Kavanaugh’s past writings that a president should not be distracted by lawsuits and investigations could become a flashpoint in what’s already shaping up to be a contentious confirmation battle.
With special counsel Robert Mueller investigating whether President Donald Trump obstructed justice, questions about whether a chief executive can be subpoenaed or indicted could potentially reach the Supreme Court. Though there’s no indication at this point that will happen, it’s sure to be a major topic of questioning at Kavanaugh’s confirmation hearing as the Senate weighs whether to confirm him to replace retiring Justice Anthony Kennedy.
Democrats opposing Kavanaugh are already weighing in, saying the past writings suggest he would be inclined to side with Trump.
Senate Democratic leader Chuck Schumer said Tuesday that he “seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise.”
A look at Kavanaugh’s past statements on presidential powers:
INVESTIGATIONS AND LAWSUITS INVOLVING THE PRESIDENT
Kavanaugh was a key player in the investigation that led to President Bill Clinton’s impeachment, but a decade later he wrote that the experience, coupled with his time working for President George W. Bush, had persuaded him that presidents should not have to face criminal investigations, including indictments, or civil lawsuits while they are in office. He said Congress should pass a law temporarily protecting presidents from such distractions in office.
Clinton, for example, “could have focused on Osama bin Laden without being distracted by the Paula Jones sexual-harassment case and its criminal investigation offshoots,” Kavanaugh wrote in the 2009 Minnesota Law Review article.
If applied on the court somehow, those opinions could have a direct impact on Trump, who has also been dogged by allegations of sexual harassment.
In the Russia probe, it’s theoretically possible the court could have to weigh in on the question of whether a president is immune from criminal prosecution. The Justice Department’s Office of Legal Counsel, which provides guidance to executive branch agencies, has said sitting presidents cannot be prosecuted while in office.
SUBPOENAING THE PRESIDENT
In addition to indictment, another issue tied to the Mueller investigation that has not been fully resolved in the courts is whether a sitting president must respond to a subpoena from investigators.
In the 2009 article, Kavanaugh wrote that Congress should also exempt the president from questioning by criminal prosecutors or defense counsel.
“Even the lesser burdens of a criminal investigation – including preparing for questioning by criminal investigators – are time-consuming and distracting,” he wrote, adding that a president concerned about an ongoing criminal investigation “is almost inevitably going to do a worse job as president.”
Mueller hasn’t indicated that he will move to subpoena the president, though his team raised the prospect with Trump’s legal team in March and may do so if the president’s lawyers refuse to make Trump available for an interview.
Clinton was subpoenaed in 1998 during the independent counsel’s Whitewater investigation, though the subpoena was later withdrawn when Clinton agreed to voluntarily testify before the grand jury.
The Supreme Court has never definitively ruled on the question of whether a president can be forced to testify, though the justices in 1974 did rule that President Richard Nixon had to produce recordings and documents that had been subpoenaed.